Opinion
G047049
09-04-2013
In re ALEJANDRO L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO L., Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. DL041340)
OPINION
Appeal from an order of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
The minor argues the juvenile court abused its discretion by refusing to enforce a prior order to evaluate a specific home for placement. At best, this argument is premature, but in any event, the minor has failed to establish error. We therefore affirm.
I
FACTS
The underlying facts of the case are not relevant to this appeal. Suffice to say that on October 24, 2011, the minor, Alejandro L., who was 12 years old at the time, was charged with five counts relating to the sexual abuse of his sister, who was three years younger. Prior to an adjudication hearing on February 9, 2012, Alejandro pled guilty to count one, continuous sexual abuse of a child under age 14, and the remaining counts were dismissed.
At the disposition hearing on April 18, 2012, evidence was presented regarding the appropriate placement for Alejandro. The defense wanted him placed with his godfather, Fernando V., and offered several witnesses in support of this request. Fernando V. testified, among other things, that he wanted to help Alejandro and was able to make sure he followed the court's orders. He was willing to have Alejandro placed in the home he shared with his long-term girlfriend. Alejandro's older sister also testified, and stated she planned to live with Fernando V. and his girlfriend to provide support and supervision for him.
Jennifer Bosch, a practicing clinical psychologist, testified that placement with relatives or a community based facility has been found to result in a greater likelihood of successful rehabilitation than a residential facility. Based on this and a variety of other factors, she recommended Alejandro's placement in a community based program. She also opined he could live in a home environment with the proper "interventions" in place.
Following the disposition hearing, the court declared the minor a ward under Welfare and Institutions Code section 602, and ordered him to serve 182 days in custody with 182 days' credit for time served. The court found that continued residence in the home of the minor's parents was contrary to his welfare, and ordered custody vested with a probation officer for suitable placement. He was also ordered to enroll in a sex offender program and to abide by various other terms and conditions of probation.
Defense counsel requested that the court direct probation to consider Fernando V.'s home for placement. The court responded: "I actually will direct them to consider that. I am not telling them to consider that first, but I will order that they consider that and then assess the home of Fernando [V.] for that purpose." The court also ordered: "I will order that they [probation] follow their standard practices and procedures that are statutorily mandated in determining the least restrictive placement that still meets the primary and probationary needs of this individual minor."
Two weeks later, on May 4, 2012, the court held a placement hearing. Defense counsel complained that Alejandro had been placed in a treatment facility outside the county, that the godfather and other family members had not been contacted by probation, and that counsel had not been contacted for further information. Defense counsel did not believe that probation had followed the court's order.
The court responded: "Well, I did not order them to either contact or evaluate the family. I had told them as part of my placement order that they should consider placement as requested by the family with the godfather and the long-term girlfriend. I did not state that that was to be a priority placement consideration, nor did I mandate that they contact the family about it. [¶] They have protocol that they are to follow. Yes, I do accept that that is how they conduct their placement consideration evaluations. I do have a one-page statement that he was placed at CTC [Children's Therapeutic Community] on April 27th, which would have been Friday, the date [on] which they contacted the father, or the father contacted them. . . . And they are requesting that I take this off calendar because he has been placed. [¶] Had he not arrived or been placed by today's date, that would have been a serious concern of what has happened. But by all appearances, the protocol and the court's order has been followed within the time limits afforded probation."
The court continued: "We have a review set for March 30th and a review set for September 17, 2012, [and for both dates] we will receive full reports. And we will review them in court. And, of course, those are dates [on] which if it is consistent with the placement, he can be present . . . . But today's hearing has been requested [to] be taken off calendar simply because he has been placed by probation at CTC . . . . [¶] This wasn't a case where they placed him at a facility and then were silent for numbers of days thereafter. Like I say, I did not order them to interview the family before they make a placement selection. I told them to consider in their placement selection the godfather and his girlfriend, as requested by the family, but that was all I ordered in my order to them."
Minor's counsel again expressed her concern that the godfather had not been contacted, then added: "So to the extent . . . my offer of proof does not give the court cause for concern, then I will bring a motion and handle it that way." The court responded: "Yes, please."
The minor subsequently filed the instant appeal.
II
DISCUSSION
"The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision. [Citations.]" (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Further, it is a "fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
This is not a close case. At the disposition hearing, the court ordered probation "to consider" Fernando V.'s home for placement, and not necessarily as the first option, but in the course of their ordinary "standard practices and procedures that are statutorily mandated in determining the least restrictive placement that still meets the primary and probationary needs of this individual minor." Less than 15 days passed, the minor was placed at a treatment facility rather than with Fernando V., and Fernando V. and his girlfriend had, apparently, not been contacted or had their home evaluated at that point.
The court was nonetheless satisfied that its order had not been violated at that point, stating, "I had told them as part of my placement order that they should consider placement as requested by the family with the godfather and the long-term girlfriend. I did not state that that was to be a priority placement consideration, nor did I mandate that they contact the family about it."
The court is the best judge of whether its own order has been violated, and we find no abuse of discretion in the court's conclusion that no such violation had occurred. Further, we agree that the court's order was merely "to consider" Fernando V.'s residence, and it was not given a higher priority than any other potential placement. Only 15 days had passed at the time of the placement, and probation could have had any number of reasons why it could not properly evaluate and place Alejandro there before the review hearing. Among other things, it is possible that some information could have arisen that would disqualify Fernando V.'s home during that period — it is impossible to tell on this record.
The minor's counsel stated she intended to bring a separate motion on this issue, which, frankly, would have been the subject of a more meaningful review than is possible here. Such a motion, presumably, would have included evidence that would have shed more light on the facts surrounding Alejandro's placement that are simply not present here, such as why probation placed Alejandro as it did, whether it intended to evaluate Fernando V.'s home further, and if not, why not. No such facts are present in the record here, and we cannot conclude on the record before us that the trial court violated its own order. The minor has simply not met his burden to establish error.
III
DISPOSITION
The order is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.